On February 14, 2020, the Office of the General Counsel of National Labor Relations Board (NLRB) made public two guidance memoranda issued by the Board’s advice division concerning Google’s discipline of a conservative engineer who complained about the company’s diversity policies and the treatment of employees who opposed those policies. Both memoranda, one from 2016 and the other from 2018, address legal issues posed by NLRB field officials to the advice division concerning the same case.
In the case at issue, a software engineer at Google filed an unfair practice charge against the company stemming from the engineer’s use of an internal discussion forum to discuss controversial social issues.
The engineer used the forum to post a message concerning the topic of women and minorities in the tech industry. In the post, the engineer questioned whether employees can criticize the company’s workplace diversity and inclusion policies and complained that workers bully conservative employees who express such viewpoints.
Google subsequently issued the engineer a written warning, discouraging the use of the forum to post such messages and threatening disciplinary action against the engineer for engaging in such conduct.
In the 2016 advice memo, the NLRB staff concluded that the engineer’s posts made constituted concerted activity under the National Labor Relations Act (NLRA) since they involved concerns that were shared among a group of employees. The memo therefore found that Google violated the NLRA by issuing the engineer a written warning and threatening the employee for engaging in the protected activity.
Google then requested that the advice division reconsider its initial conclusion that the engineer’s conduct was protected and that the company violated the NLRA.
In the 2018 memorandum, the advice division considered Google’s argument on reconsideration that the engineer’s conduct “could lead to a hostile workplace” and that the company’s written warning to the engineer constituted a lawful attempt by the company “to ‘nip in the bud’ [that] kind of employee conduct. The 2018 memorandum acknowledged that the engineer’s comments about workplace diversity and inclusion were insensitive towards minority groups. However, the memo provided that the engineer did not use derogatory, abusive, or discriminatory language and that no reasonable employer would regard such comments as creating a hostile work environment at Google. Therefore, the advice division again concluded again that the engineer’s conduct constituted protected concerted activity under the NLRA and that Google could not permissibly discipline the employee for engaging in such conduct.
The NLRB General Counsel released the memoranda following a settlement between the parties.
Google, Inc. (May 30, 2018) Case 32-CA-164766.
NOTE:
The memoranda are a good reminder to employers to exercise caution when considering whether to discipline an employee that makes statements critical of the employer’s workplace policies and practices, even when such conduct is disruptive to the employer’s normal business operations.